Flour City Architectural Metals Corp. v. John Gallin & Son, Inc.

Appellate Division of the Supreme Court of New York

Flour City Architectural Metals Corp. v. John Gallin & Son, Inc.

127 A.D.2d 559, 511 N.Y.S.2d 362, 1987 N.Y. App. Div. LEXIS 43028

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 2, 1987

StatusPublished

Cited by3 cases

This text of 127 A.D.2d 559 (Flour City Architectural Metals Corp. v. John Gallin & Son, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Flour City Architectural Metals Corp. v. John Gallin & Son, Inc., 127 A.D.2d 559, 511 N.Y.S.2d 362, 1987 N.Y. App. Div. LEXIS 43028 (N.Y. Ct. App. 1987).

Pincite

Opinion

In an action to recover damages on theories of breach of contract, account stated, and fraud, the defendant appeals from a judgment of the Supreme Court, Nassau County (Friedenberg, J.H.O.), entered October 3, 1985, which is in favor of the plaintiff and against it in the principal sum of $11,660.

Ordered that the judgment is affirmed, with costs.

The evidence contained in the record is sufficient to support the findings of the Judicial Hearing Officer (1) that plaintiff incurred a sales tax in the amount of $11,660 in connection with its purchase of materials necessary to the performance of its contract with the defendant, and (2) that the parties agreed that the defendant would be obligated to reimburse the plaintiff for any such tax liability.

We reject the defendant’s argument that the plaintiff failed to prove its damages. The plaintiff produced a witness at trial who authenticated a document designated as a "summary [of] tax liability” and who testified that it was the duty of the plaintiff’s accounting department to prepare such documents in the regular course of its business and that this document was prepared in the regular course of the plaintiff’s business. This document was, therefore, properly admitted as a business record (CPLR 4518 [a]; Williams v Alexander, 309 NY 283, 286-287). Contained in this document was the notation that $11,660 in sales tax had been incurred. Also, the defendant has, on appeal, abandoned its argument that another, separate document was improperly received into evidence. That document indicates that this amount was actually paid by the plaintiff. Accordingly, it is clear that the plaintiff proved its damages by competent, documentary evidence. Moreover, the [560]*560plaintiffs witness also gave competent testimonial evidence that the tax liability of $11,660 had indeed been paid. Thus, the defendant’s argument that the plaintiff failed to prove its damages is meritless.

We have examined the defendant’s remaining contentions and find that they are likewise without merit. Niehoff, J. P., Rubin, Lawrence and Sullivan, JJ., concur.

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In an action to recover damages on theories of breach of contract, account stated, and fraud, the defendant appeals from a judgment of the Supreme Court, Nassau County (Friedenberg, J.H.O.), entered October 3, 1985, which is in favor of the plaintiff and against it in the principal sum of $11,660.

Ordered that the judgment is affirmed, with costs.

The evidence contained in the record is sufficient to support the findings of the Judicial Hearing Officer (1) that plaintiff incurred a sales tax in the amount of $11,660 in connection with its purchase of materials necessary to the performance of its contract with the defendant, and (2) that the parties agreed that the defendant would be obligated to reimburse the plaintiff for any such tax liability.

We reject the defendant’s argument that the plaintiff failed to prove its damages. The plaintiff produced a witness at trial who authenticated a document designated as a "summary [of] tax liability” and who testified that it was the duty of the plaintiff’s accounting department to prepare such documents in the regular course of its business and that this document was prepared in the regular course of the plaintiff’s business. This document was, therefore, properly admitted as a business record (CPLR 4518 [a]; Williams v Alexander, 309 NY 283, 286-287). Contained in this document was the notation that $11,660 in sales tax had been incurred. Also, the defendant has, on appeal, abandoned its argument that another, separate document was improperly received into evidence. That document indicates that this amount was actually paid by the plaintiff. Accordingly, it is clear that the plaintiff proved its damages by competent, documentary evidence. Moreover, the [560]*560plaintiffs witness also gave competent testimonial evidence that the tax liability of $11,660 had indeed been paid. Thus, the defendant’s argument that the plaintiff failed to prove its damages is meritless.

We have examined the defendant’s remaining contentions and find that they are likewise without merit. Niehoff, J. P., Rubin, Lawrence and Sullivan, JJ., concur.

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127 A.D.2d 559, 511 N.Y.S.2d 362, 1987 N.Y. App. Div. LEXIS 43028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flour-city-architectural-metals-corp-v-john-gallin-son-inc-nyappdiv-1987.

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